RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 September 2006
      DOCKET NUMBER:  AR20060001802


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Thomas Ray                    |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that clemency be granted in the form
of a discharge upgrade.

2.  The applicant states that he had an outstanding service record prior to
the court-martial.  He contends that he is requesting clemency/discharge
upgrade so he can return to the military service in the Chaplain Corps.

3.  The applicant provides no additional evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 June 1983.  The application submitted in this case is dated
3 February 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted on 11 September 1981 for a period of 3 years.
He successfully completed basic training.

4.  While in advanced individual training, on 19 April 1982, nonjudicial
punishment was imposed against the applicant for disobeying a lawful order
and two specifications of being disrespectful in deportment towards
superior noncommissioned officers.  His punishment consisted of extra duty.

5.  While in advanced individual training, on 18 May 1982, nonjudicial
punishment was imposed against the applicant for two specifications of
larceny, assault, and communicating a threat to injure.  His punishment
consisted of a forfeiture of pay.

6.  While in advanced individual training, on 24 May 1982, nonjudicial
punishment was imposed against the applicant for disobeying a lawful order.
 His punishment consisted of a forfeiture of pay (suspended).  On 26 May
1982, the suspended portion of the applicant’s sentence was vacated.
7.  On 19 August 1982, contrary to his pleas, the applicant was convicted
by a special court-martial of assaulting another Soldier by hitting him
with a means likely to produce grievous bodily harm (throwing a Gatorade
bottle at him and hitting him on the forehead) and failure to repair.  He
was sentenced to be discharged from the service with a bad conduct
discharge.  On 7 October 1982, the convening authority approved the
sentence.

8.  On 24 February 1983, the U.S. Army Court of Military Review affirmed
the findings of guilty and the sentence.  On 24 May 1983, the U.S. Court of
Military Appeals denied the applicant’s petition for grant of review of the
decision of the U.S. Army Court of Military Review.  The bad conduct
discharge was ordered to be executed on 27 June 1983.

9.  Accordingly, the applicant was discharged on 27 June 1983 under the
provisions of Army Regulation 635-200, chapter 3, as a result of a court-
martial.  He was issued a bad conduct discharge.  He had served 1 year, 9
months and 17 days of total active service.

10.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Chapter 3 of this regulation states that a Soldier
will be given a bad conduct discharge pursuant only to an approved sentence
of a general or special court-martial.  The appellate review must be
completed and the affirmed sentence ordered duly executed.

11.  Section 1552(f), Title 10, United States Code states that the Army
Board for Correction of Military Records can only review records of court-
martial and related administrative records to correct a record to
accurately reflect action taken by reviewing authorities under the Uniform
Code of Military Justice or to take clemency action.

12.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.

13.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently
meritorious to warrant an honorable discharge.  A characterization of under
honorable conditions may be issued only when the reason for the Soldier’s
separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant’s contention that
he had an outstanding service record prior to his court-martial.  Evidence
of record shows the applicant did not complete advanced individual training
and that he had three nonjudicial punishments prior to his special court-
martial conviction.

2.  The applicant’s record of service included three nonjudicial
punishments and one special court-martial conviction.  He was discharged
with a bad conduct discharge for assaulting another Soldier with a Gatorade
bottle and failure to repair.  As a result, his record of service was not
satisfactory and did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, clemency in the form of
an honorable discharge is not warranted in this case, nor was his service
sufficiently satisfactory to warrant a general discharge.

3.  Records show the applicant should have discovered the alleged injustice
now under consideration on 27 June 1983; therefore, the time for the
applicant to file a request for correction of any injustice expired on 26
June 1986.  The applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JA______  _ML_____  _TR____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                                  __James Anderholm_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001802                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060919                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19830627                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 3                    |
|DISCHARGE REASON        |As a result of court-martial            |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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